Can a New York district attorney attend a political party's functions when not running for re-election?

Plain-English summary

The committee was asked whether a district attorney who is not a candidate for re-election may attend the political or social functions of his own or any other political party, as a paying or invited guest, and whether the same standards apply to assistant district attorneys. It drew on its long-standing view, stated in N.Y. State 513 (1979), that there is a basic incompatibility between the duties of a public prosecutor and partisan politics, a view rooted in the Ethical Considerations rather than the Disciplinary Rules and reflecting the prosecutor's special duty to seek justice and avoid the appearance that political considerations affect prosecutorial decisions. Lacking statewide or national guidelines on prosecutors' political activity, the committee again turned to the rules governing judges as the closest analogy.

Applying that analogy, the committee concluded that attendance at the political or social functions of a political party should be added to the list of political activities a prosecutor must forgo, so a district attorney not involved in his own re-election campaign may not attend such functions as either a paying or invited guest, and the same proscription applies to assistant district attorneys. The opinion expressly did not address whether assistants may engage in political activity tied to a candidacy for the office of district attorney during a period when the district attorney himself may do so. The committee modified this flat prohibition the following year in N.Y. State 573, which permitted attendance in limited circumstances.

Currency note

This opinion was issued in 1985 and was modified the next year by N.Y. State 573 (1986), which relaxed the flat ban on attending political functions; it also predates New York's replacement of the Code of Professional Responsibility with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a district attorney attend political party functions when not up for re-election?

A: No, under this opinion. The committee held a district attorney not running in his own campaign may not attend any party's political or social functions, as a paying or invited guest. N.Y. State 573 later eased that ban.

Q: Did the same rule apply to assistant district attorneys?

A: Yes. The committee applied the same proscription to assistant district attorneys.

Q: Is this opinion still the committee's position?

A: It was modified. The committee revisited it in N.Y. State 573 (1986), which permitted attendance in limited circumstances and extended the modified standards to county attorneys.

Background and rules framework

The opinion rested on Canon 9's concern with the appearance of impropriety and the Ethical Considerations on a prosecutor's special role (including EC 7-13 and EC 8-8), applying to prosecutors by analogy to the restrictions on judges' political activity under the Code of Judicial Conduct. The closest current Model Rule analogue for prosecutorial conduct generally is Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct)
• NY Canon 9 (appearance of impropriety); EC 7-13; EC 8-8; DR 7-103(A)

Other opinions cited:

• N.Y. State 513 (1979): incompatibility of a prosecutor's duties with partisan politics
• N.Y. State 573 (1986): modified this opinion, permitting attendance in limited circumstances

See also

• NY State Bar Op. 573: District and county attorneys attending political functions
• NY State Bar Op. 586: Judicial candidate and judge political contributions
• NY State Bar Op. 585: Judge membership in a bar association with a PAC

Source

• Landing page: https://nysba.org/opinion-568/